DeCSS and (My) Radicalization

Philosophy Club Poster

I made this poster for a meeting of the Philosophy Club at Wilton High School. Admittedly, my definition of “philosophy” was pretty loose and this poster’s point was pretty incoherent (apologies to MLK), but I had found myself talking about the 2600 DeCSS case Universal v. Reimerdes so much with my friends, that I figured it might be good to found a club where we could keep similar conversations going. Since our school didn’t have a debate club at the time (there were rumors about an ill-fated trip involving a school bus sinking in the Norwalk River), we didn’t really have any other venues to do this besides study hall.

Luckily, my father happened to be a working philosophy of science professor and had enough spare time to help us get the club off the ground. I think I organized the first session and ranted about the DeCSS case, but we later moved onto more academic subjects and discussions. The club was a high point in what was mostly a difficult period in my life and school. I think I still have some photos that we intended to submit to the yearbook and if those turn up I’ll try and post them. Unfortunately the club never survived after our class’s graduation as we were unable to find a faculty adviser or enough student interest. I would later use the skills I developed to launch Free Culture @ NYU, so I suppose I was on the right track.

The polemical writings of Emannuel Goldstein, editor in chief of 2600 and the main defendant in the case, about the magazine’s choice to publish DeCSS had galvanized me. Goldstein articulated that the issues at hand in the suit were really ones of freedom, source code, and speech, not piracy and profits. As an early adopter of Linux (Slackware 3.3 anyone?) as well as a kid who loved movies and was incredibly excited about the potential of DVDs, the practicalities of the case were quite clear to me: why shouldn’t I be able to run whatever software I wanted to play my own DVDs? Who says I can’t read *that* source code? Jon Johansen, the teenager hacker who cracked the DVD encryption scheme, CSS (not to be confused with the other CSS), played the role of sympathetic hacker who I, not incidentally, looked up to.

Free speech on the internet, heck, freedom itself, appeared to be at stake, threatened by a very bad part of a very new law that sounded like it was bought and paid for by the exact interests suing our magazine.

During the case’s 2nd Circuit Court of Appeals trial in May of 2001, I wore a t-shirt featuring the censored source code while sitting in the audience. The Wall Street Journal interviewed me that day and it wasn’t until last year that I discovered my quote actually made it into the article in the paper:

Looking back, I now realize my interest and involvement in this case marks my early foray into the world of radical online free speech activism and copyright reform. I knew the 2600 case was important (clearly, I spent a disproportionate amount of time thinking about it, debating it, and following it closely), but I did not estimate how much these issues would continue to shape and influence my life and career. I’ve now been involved in this community for almost a decade, and it’s only beginning to get really interesting.

Obviously, I was not alone. This case and these issues not only radicalized a generation of free software developers and enthusiasts, but also trained them with a set of skills necessary to successfully navigate these issues in the future.

My friend and now colleague at NYU, Gabriella Coleman has written an article about our story called “Code is Speech: Legal Tinkering, Expertise, and Protest among Free and Open Source Software Developers”  published in the academic journal Cultural Anthropology. Biella’s paper is one of the best overviews of the conditions that precipitated the birth of a generation of internet and free speech activists. Biella concludes by arguing this type of political activism and legal autodidacticism represents a new kind of engagement with democracy, which of course, I completely agree with and am proud to be part of.

Download the PDF of her paper here, or look for it in your copy of Cultural Anthropology.

New Responsibilities @ CC & Teaching @ NYU

I’m now working as Creative Common’s product manager developing features and plans for the Creative Commons Network. Here’s my original post on the Creative Commons blog from a month ago:

CC Network LogoOver the last year I’ve been fortunate enough to work with individuals, organizations, and movements as Creative Commons’ Outreach Manager. Starting this week, I will be applying this experience to a new role at CC as our Product Manager for the Creative Commons Network. I’ll still be working in NYC and free to meet about CC, but will be primarily focused on developing new features and tools for our community.

For those of you who haven’t heard of it, check out our press release and post announcing the network in October, and for those of you who have already joined, we should have some exciting announcements for you by the end of the year.

You can also join the CC Network now by donating.

For now, if you have any thoughts, suggestions, or questions about the Creative Commons Network, please don’t hesitate to get in contact: fred [at]

I’m also excited to announce that I’ll be teaching “Copyright, Commerce & Culture” at NYU’s Department of Media, Culture and Communications, previously taught by my friend and colleague Aram Sinnreich.

I’m honored to be taking over such a great class, and happy to once again find myself looking forward to starting another Fall semester at NYU. Here’s the course description:

E59.1405 Copyright, Commerce and Culture

Course explores the basic tenets and operative principles of the global copyright system. It considers the ways in which media industries, artists, and consumers interact with the copyright system and judges how well it serves its stated purposes: to encourage art and creativity. Examinies various social, cultural, legal, and political issues that have arisen in recent years as a result of new communicative technologies. The two main technological changes that concern us are the digitization of information and culture and the rise of networks within society and politics.

The class will almost certainly have a blog and syllabus online with links to articles we’ll be reading in class, so I’ll make sure to post that here.

Currently the class is scheduled to meet on Tuesdays and Thursdays from 3:30-4:45pm, and appears, unfortunately, to be already full. This may change, so if you’re interested in attending, just keep an eye out on ALBERT, and/or let me know.

Progressive Music

More history being made this week for the music industry. First, NIN topped the Amazon MP3 charts with a CC licensed instrumental album.

Today, Apple promised to go DRM free on iTunes by the end of Q1 2009.

In October of 2006, I organized the first DRM protests in the states while a student activist in Free Culture @ NYU. A year later, we protested the midtown Apple store after Tower Records went out of business (Tower was our second target after Virgin Megastore in Union Square.)

A couple of months after the Apple protest, Steve Jobs wrote his famous anti-DRM letter to the music industry. Since then Apple has ostensibly been negotiating variable pricing and removing DRM entirely from the store. Jobs probably sacrificed the one-size-fits all $.99 price per song so that he could get DRM completely out of the store.

There are still things to be done, however, before victory is declared. The iPod supporting truly free formats would be nice (I’m becoming increasingly interested in collecting FLAC music), at least until the various patents controlling MP3 expire. Also, native CC licensing built into music stores like Amazon and iTunes would be nice too.

But as Voltaire said, “The perfect is the enemy of the good.”

The RIAA’s Loss

The RIAA has announced that they have stopped suing individual file sharers for copyright infringement.

The suits were based on the questionable notion that making files available in directories through peer-to-peer software like KaZaa was a violation of the copyright of the owner of the works. The RIAA was not going after people downloading music, or even people who had sent a file to someone else, but rather the set of people who had shared directories with files that looked like music and were available for public perusal.

This was problematic because the copyright statute doesn’t actually say anything about “making available.” The right to control who distributes one’s work is one of the rights granted to authors by the statute, but the RIAA had no evidence that file sharers had actually distributed the files, just that they had made them available and that the files could potentially be distributed.

Consequently, the RIAA had to argue that “making available” was actually part of the copyright statute when it wasn’t. When the handful of suits (out of 35,000) made it to court, some Judges started to realize this, and through the selfless and amazing work of Ray Beckerman, the legal community slowly turned against the prosecution.

All in all, the RIAA’s campaign to sue their own customers was a disaster. CD sales continued to plummet and filesharing’s popularity only increased. This is not to mention the public relations catastrophe the industry now faces. Musicians hate being associated with large corporations that the public perceives as evil, and more substantively, musicians have not seen any of the settlement monies the RIAA has been collecting on their behalf.


The RIAA is claiming that the campaign “was successful in raising the public’s awareness that file-sharing is illegal” which is demonstrates a gross misunderstanding of the law and technology.

So what is next? The RIAA claims that they will be making deals with ISPs to institute something roughly similar to a 3-strikes and you’re out policy against file sharers. The terms and details of these agreements are not flushed out (and will probably never be made available to the public), but on some level, this is a less vicious form of negotiation with the technical realities their industry is facing.

But there is already evidence of ISPs acting in haste to dismantle legal file sharing outfits. TorrentFreak has a story about an open source software tracker having their service revoked by their ISP because they were accused of hosting an illegal torrent of the game Command and Conquer. YouTube already engages in auto-take-downs of videos that are supposedly infringing.

I’m a huge fan of the site and have used it for distributing the uncompressed (~1gb) versions of two Creative Commons videos, A Shared Culture and Media That Matters: A CC Case Study. Because everything on LegalTorrents is free to share (under an appropriate CC or similar public license), it is the perfect counterexample to the RIAA’s claim that file sharing is inherently illegal.

Put another way, file sharing in and of itself is not illegal (just as crowbars in and of themselves are not illegal) and sites like LegalTorrents demonstrate this. We should not let the RIAA use the fact that they’ve abandoned their campaign as a positive cover to privately intimidate ISPs into breaking the Internet.

More importantly, we should keep the pressure on ISPs about preserving network neutrality. When used on the public net and ISPs, deep packet inspection filtering and application layer filtering are violations of network neutrality and if the RIAA is successful in pushing these technologies as “solutions” to the file sharing problem, we are going to have a much larger problem on our hands than 35,000 dispersed lawsuits.

Yes We Did.

I just wanted to thank everyone I know right now for helping Barack Obama win this presidency. Your effort in this campaign made the difference, and I thank you from the bottom of my heart for making change happen this election.

As a way to move on, I’ve created a site with my friend Sorrel, called “Don’t Let The Door Hit You On The Way Out” where we are collecting farewell notes for Bush. Think of it as catharsis politics.

The basic idea is that you e-mail us your images, words, and ideas and we’ll compile them into a book that we’ll try and get into Bush’s hands before Obama is sworn in. All submitted works must be licensed under CC’s Attribution license. We want as much participation in this as possible, so please let everyone you know about this project.

Moving on from Copyleft

I’m no longer using CC’s Attribution ShareAlike for my photos, and have switched to requiring just Attribution when my photos are used. This post will hopefully explain why I switched, and present some ideas and critiques about copyleft with respect to photography.

When I first started my photoblog, in late February of 2005, I was releasing my images under Creative Commons Attribution-NonCommercial so that you could use my photos so long as you gave me attribution and didn’t use them commercially:

This photo was originally released under a NonCommercial license.

After working at CC for the summer as their intern, I began to rethink my reasoning for choosing this license. The free software camp adamantly opposed putting commercial restrictions on software in the name of freedom, and therefore some opposed putting NonCommercial restrictions on free culture. Richard Stallman, the progenitor of free software, didn’t oppose CC’s NonCommercial license, so much as our other licenses for more technical reasons. Since CC has retired our Developing Nations License and Sampling License, it remains to seen whether he’ll endorse CC now.

Anyway, Attribution-ShareAlike, Creative Commons’ copyleft license, was the recommended solution to achieving some of the goals that people thought they wanted with CC’s NonCommercial license. Afraid that someone is going resell remixes of your work? If they have to release those remixes under the same license in which you gave it to them (put simply, the principle of ShareAlike and copyleft), then they’ll have no financial incentive to sell it, because the license will allow sharing and future commercial exploitation by the public. This, the reasoning goes, should make authors feel better about their work being commercially resold if and when that were to happen.

Putting aside questions about commercial advertising exploiting copylefted work, I then switched my photo’s Creative Commons Attribution-ShareAlike license.

My Tonka Beans make it to the Wall Street JournalMany of my photos have been used by mainstream publications without my permission (that’s a good thing as far as I’m concerned) because I’ve put them under a Creative Commons license.

Up until today, I had had most of my photos licensed under this license, and found wonderful uses of them by places like Popular Science, the Wall Street Journal, and of course, Wikipedia. It has since become very clear to me that there is a continuum, and that the more liberally you release a work, the better it can flow into the world.

It is for this reason and the ones below, that I am now removing the “copyleft” requirement of my photos. That is, I am removing the ShareAlike condition on my work, and releasing them under purely Attribution. This means you can mash up my photos, remix them, use them commercially, and do basically whatever you want, with absolutely no obligation above giving me proper attribution and stating that the original was released under a CC Attribution license.

Here are some more thoughts on why copyleft and photography aren’t a great fit:

  • Copyleft is difficult to explain for most people unfamiliar with software, much less licensing, and it imposes a further transaction cost on people using my work. When I’m negotiating with people who hire me to take photos for events or portraits, the basic notion of attribution is very easy to explain. However, copyleft takes precious time and negotiating energy to further explain. Since I’d rather have my work used than not, most of the time I just waive ShareAlike anyway. This is the standard complaint levied against copyleft in the decades-old war between permissive licenses and copyleft licenses. Google, for example, chose the permissive Apache license (basically the software equivalent to CC’s Attribution license) for their Android platform because it not only allows the codebase to be open source / free software, but because it encourages other companies to adopt it without further complications to their work flow and software stacks.
  • Similarly, most people ignore copyleft when they don’t understand it. I’m torn about whether this should be a distinct point from the one above, but I think there’s a difference between the cost of explaining copyleft, and the cost of using copylefted work. I have found numerous examples of when people use my images, and either don’t want to pay attention to the ShareAlike condition, so they just ignore it, or they don’t understand it in the first place. Besides having to explain copyleft, this forces me to punish the reuser with more work, something I’m not comfortable with doing when I should be the one that is thankful that someone else is reusing my photos.
  • The legal ground for what constitutes a “derivative” of a photographic work is less than clear. Therefore, it is unclear when parent works must be released under the ShareAlike license when they use my photo. For example, if someone takes my photo from Flickr (which was under a BY-SA license) and uses it in a mainstream newspaper, are they obligated to release the article that uses the photo under BY-SA or the newspaper or neither? The license states that derivatives must be licensed and shared in the same way, but there is a split circuit decision on whether a derivative is created by re-contextualizing a photo. Wikipedia has a “Reusing Content from Wikipedia” page that basically dodges the question.

    More importantly, its not just the courts who are split on this decision. Some people believe that copylefted material should not place an undue burden on mainstream press when using photos, and others believe that the press shouldn’t be allowed to use work without giving up something a little themselves, namely the exclusive rights monopoly over the encompassing work.

    Needless to say, this is a frustrating fact of copyleft for photography that blurs the lines in a way similar to the NonCommercial issue. Deciding “What is a derivative?” looks, in some cases, as challenging as deciding “What is NonCommercial?

  • Copyleft for photos doesn’t make as much sense as it does for software. Richard Stallman’s idea behind copyleft was to not only protect his work from becoming proprietary (and therefore locking him out of his own work), but to encourage people who built upon it to release those modifications back into the community. Building upon the work of others in photography does not require access to the source, even if you make the crass analogy that negatives (or RAW files) are the photography equivalent of source code, because all you need to learn and build upon photography is visual access to the final works. When I as a photographer, build upon the work of Diane Arbus or Andreas Gursky, my community does not need to have access to my negatives or RAW files to benefit from the changes I made based on an original photographer’s work, all they need is visual access to my end result. And I don’t buy the argument that access to my negatives or RAW files is just as valuable as access to a software application’s source code, because the negatives and RAW files are essentially unedited and unprocessed. I also don’t buy the argument that compiling a program is like exposing a negative. Where a compiled application fundamentally obscures the underlying source, an exposed negative only partially edits the underlying source — you can still learn from the photo and build upon it, and even arguably share it.

So with that, all 3,330 of my flickr photos are now under CC’s Attribution 2.0 license, and all photos on my photoblog are as well. Enjoy!


Someone submitted my FREE BEER photo from Sapporo to the FAIL Blog:

Here is my original from Flickr:

Free Beer

There are a couple of things that are frustrating about this. For one, they didn’t follow my CC license and attribute me and release the modified version under the same license. That’s forgivable because I made the photo basically impossible to find via a text search (so this person could have found it through an intermediary) because I hadn’t tagged it.

Whats more annoying is that the FAIL blog seems to have posted this because people think its an example of Engrish in Japan:

That’s my only theory, really. Poorly chosen Engrish name. Then again, I’m also curious as to what the orange text reads – I can’t quite make it out on my own.

Someone named “Stallman” seems to have attempted to correct all of the failures of communication towards the end of the thread:

To understand the concept, you should think of “free” as in “free speech,” not as in “free beer.”

But something tells me its not really RMS, as he doesn’t use a browser, so I don’t think he’s submitting comments on FAIL blog.

This doesn’t exactly inspire a lot of confidence in possibility of a future world in which “free” suddenly means “libre” and not “gratis.”

‘A Shared Culture’

Creative Commons is in the midst of its 2008 fundraising campaign. Find out how you can support Creative Commons at our support site.

To celebrate the campaign, Creative Commons has released “A Shared Culture,” a short video by renowned filmmaker Jesse Dylan. Known for helming a variety of films, music videos, and the Emmy Award-winning “Yes We Can” Barack Obama campaign video collaboration with rapper, Dylan created “A Shared Culture” to help spread the word about the Creative Commons mission.

In the video, some of the leading thinkers behind Creative Commons describe how the organization is helping “save the world from failed sharing” through free tools that enable creators to easily make their work available to the public for legal sharing and remix. Dylan puts the Creative Commons system into action by punctuating the interview footage with dozens of photos that have been offered to the public for use under CC licenses. Similarly, he used two CC-licensed instrumental pieces by Nine Inch Nails as the video’s soundtrack music. These tracks, “17 Ghosts II” and “21 Ghosts III,” come from the Nine Inch Nails album Ghosts I-IV, which was released earlier this year under a Creative Commons BY-NC-SA license.

What’s fun about this project is that I used two new sites in the commons space, and Legal Torrents has the original file here, and you can see all the proper attributions for the photos used in video at the bottom of the main page, where each has a link to a permanent time stamp that lives on the ImageStamper site.

Upholding Open Source Licenses

Lessig posted yesterday about the United States Court of Appeals for the Federal Circuit’s ruling upholding  the “Artistic License“:

I am very proud to report today that the Court of Appeals for the Federal Circuit (THE “IP” court in the US) has upheld a free (ok, they call them “open source”) copyright license, explicitly pointing to the work of Creative Commons and others. (The specific license at issue was the Artistic License.) This is a very important victory, and I am very very happy that the Stanford Center for Internet and Society played a key role in securing it. Congratulations especially to Chris Ridder and Anthony Falzone at the Center.

In non-technical terms, the Court has held that free licenses such as the CC licenses set conditions (rather than covenants) on the use of copyrighted work. When you violate the condition, the license disappears, meaning you’re simply a copyright infringer. This is the theory of the GPL and all CC licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license.

Important clarity and certainty by a critically important US Court.

As Lessig points out this is incredibly important, and in the long and short term, will make my job a lot easier.

Every time I get into a conversation with someone who is fairly legally minded regarding Creative Commons, they ask me, “But does it actually work?” meaning, does the law actually pay attention to these licenses that CC puts out? If someone breaks my CC license, will judges even care? Previously I’ve had to point to two international cases where CC licenses were upheld but demurely note that they haven’t, yet, been tested in the United States.

Now they have effectively been tested on a federal appeals level and have passed with flying colors. Aside from a Supreme Court decision, the free software and culture movement couldn’t have asked for anything better from the courts.

An excerpt from the opinion:

Open source licensing has become a widely used method of creative collaboration that serves to advance the arts and sciences in a manner and at a pace that few could have imagined just a few decades ago.  For example, the Massachusetts Institute of Technology (“MIT”) uses a Creative Commons public license for an OpenCourseWare project that licenses all 1800 MIT courses.  Other public licenses support the GNU/Linux operating system, the Perl programming language, the Apache web server programs, the Firefox web browser, and a collaborative web-based encyclopedia called Wikipedia.  Creative Commons notes that, by some estimates, there are close to 100,000,000 works licensed under various Creative Commons licenses.  The Wikimedia Foundation, another of the amici curiae, estimates that the Wikipedia website has more than 75,000 active contributors working on some 9,000,000 articles in more than 250 languages.

It’s important to understand that the case isn’t testing a particular CC license per se, but testing a class of “open source” licenses which CC belongs to while underscoring the importance of licenses such as the six that CC stewards.

Anyway, congratulations to everyone at Stanford and JMRI for winning the case.